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Township of Harrison v. Combs

A-2692-09T3 (N.J. Super. App. Div. 2010) (Unpublished)

CERTIFICATES OF OCCUPANCY — A certificate of occupancy may not be issued until construction regulations are met, including confirmation that water, sewer, electric, and gas services are properly installed and a temporary certificate of occupancy cannot be issued until an application for it is filed and all requirements for the certificate of occupancy are met nor when there are outstanding penalties and fees related to the occupancy.

A homeowner appealed from a municipality’s order that he vacate his new home where he and his family had moved in before a certificate of occupancy had been issued. There was a building permit for the home, but no final inspections were issued or applied for. The construction official witnessed lights on at night, cars parked in the driveway and garage, and children leaving the home to board their school bus.

The municipality issued a notice and order of penalty. It imposed an initial penalty and additional weekly penalties if the homeowner continued to occupy the property illegally. The homeowner refused the municipality access to the property to conduct final inspections and to inspect the electrical and sewer systems. The homeowner claimed that the municipality did not have the authority to deny him a temporary certificate of occupancy or to assess any penalties. The lower court disagreed with the homeowner, and the Appellate Division affirmed.

The Court observed that the New Jersey Uniform Construction Code requires that a structure remain vacant until a certificate of occupancy is issued. A certificate of occupancy may not be issued until all construction regulations are met, including confirmation that water, sewer, electric, and gas services are properly installed. In this case, the construction official testified that the municipality could not confirm that these utilities had been properly installed since the municipality had been denied access to the property. The Court also rejected the homeowner’s claim that the municipality’s imposition of fines and penalties was malicious. It noted that the construction code specifically authorizes the imposition of penalties and fees on persons who violate the act and that a person may be charged weekly for continuing failure to comply. The Court also found that the homeowner mistakenly believed that the municipality was required to issue him a temporary certificate of occupancy upon request. The Court found that the municipality could not issue a temporary certificate until an application requesting one was filed and all requirements for the issuance of a certificate of occupancy were met. That did not happen here. Further, the regulations permit a municipality to refuse to grant a temporary certificate of occupancy where, as in this case, there were outstanding penalties and fees.


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